Professional Skipper Magazine from VIP Publications

OCEAN LAW WHY LAW IS INTERESTING… REALLY! BY KARYN VAN WIJNGAARDEN, LLB, BSC, SOLICITOR WITH OCEANLAW NEW ZEALAND I n a previous article about the legal difference between the territorial sea (out to 12nm) and the exclusive economic zone or EEZ (12-200nm), we referred to the United Nations Convention on the Law of the Sea (UNCLOS), the result of the 3rd United Nations Conference on the Law of the Sea. UNCLOS defines the rights and responsibilities of nations in their use of the world's oceans, establishing guidelines for the management of natural resources, protection of the environment, and the operation of shipping and other vessels. The Convention was concluded in 1982, replacing previously negotiated treaties, and came into force in 1994. It is long, and mostly boring, covering many aspects of international law. Most notably, the Convention set the limits of each state, established navigation and transit regimes, EEZs, continental shelf jurisdiction, deep seabed mining, scientific research and exploration regimes, protection of the maritime environment, as well as providing a forum for dispute settlement. The Convention is the codification of customary international law. As the name implies, customary law evolves through the practices and customs of those states that partake in that aspect of international law. The ethos behind the UNCLOS was to have all countries operating under standardised rules in the international environment, providing certainty for regulatory authorities, vessel operators and vessel crew. The maritime sector and maritime environment provide perhaps the greatest source of interaction between various states. The need for clarity in jurisdiction is vital for the continuation and smooth operation of, our vital shipping and other maritime industries. The codification of customary international law does not necessarily alter the fundamentals of that law; it usually records current practices and clarifies the principles under which nations have been operating for some time. Disputes between parties who are both members of the Convention are able to be heard by the International Tribunal on the Law of the Sea, which deals with disputes arising under the UNCLOS agreement. The Convention sets out the limits in relation to a territory's powers over that zone. To date, 162 countries and the European Community have joined the Convention. The process by which international conventions become domestic law in each signatory country, involves several steps. The first step for a country to join the Convention, is the signing of the Convention itself. The ultimate step in adopting an international agreement or convention is the ratification of the Convention, where the international instrument is brought into a country's domestic law. This can require amendments to other pieces of domestic legislation; for example, any Act which has provisions inconsistent with UNCLOS would require amendment, prior to the ratification of the Convention into domestic law, to ensure consistency with the international agreement. It is interesting that a convention that was conceived in 1973, largely at the instigation of, and with significant support from the US, remains unratified by that country today. It appears to be a political hot-potato for US politicians, an issue that is brought out periodically but not progressed, before being returned to the cupboard without an advancement of the position of the Convention. Along with the US, 13 other nations (four landlocked), as diverse as Andorra, Azerbaijan, Israel, Peru, Turkey, Turkmenistan, Uzbekistan and Venezuela are not signatories, and a further 16 (nine landlocked) have signed but not ratified; amongst them, Bhutan, Iran, North Korea, Liechtenstein and the UAE. There is mounting pressure on these states to ratify the Convention, but the most influential, the US Senate, remains unaffected. As recently as May 23, the Senate Foreign Relations Committee called on Secretary of State Hilary Clinton, Secretary of Defence Panetta, and Chairman of the Joint Chiefs of Staff General Dempsey, to testify in relation to the status of this Convention. In the days prior to writing this article, the Republican Senator John De Mint advised the Senate Majority leader that he had secured 34 Republican signatures committed to vote against ratification. As a two thirds Senate majority is required to ratify any treaty it appears that US accession has stalled yet again. In spite of both the Bush and Obama administrations, and the US military's recommendations to ratify, a significant minority lobby, as reflected above, remains implacably opposed to ratification. Reasons given vary but most can be summarised as, that it would be a constraint upon US economic sovereignty, a backdoor to environmental claims against the US, a transfer of oil and mineral royalties via the International Seabed Authority, in accordance with part XI of the convention, as well as intellectual property rights, to underdeveloped and land locked member states; all this against a backdrop of general distrust of multilateralism, the UN, and being subject in disputes to international judicial bodies minus the power of veto. Its opponents also point out that as the US observes UNCLOS guidelines anyway, there is no pressing need to ratify. Instead, equal or greater advantage could be achieved via bilateral agreements with its neighbours concerning the extended continental shelf (ECS), the Arctic, or the Gulf of Mexico. What are the implications for the rest of the world? Does the failure of the US, along with other nations, to ratify this Convention have an impact on the day-to-day dealings of nations like New Zealand? It wouldn't seem so, at this stage. However an intriguing paradox could arise that while the Convention sets out the practice of many years, the ability of a country to rely on that established practice is questionable if they are not a party to the Convention. There has not been a test case on this as yet, but it will be interesting to see if a dispute arises between a party who is a member of the Convention and a party who is not. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 52 Professional Skipper September/October 2012

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